Supreme Court of India
KARNATAKA POWER TRANSMISSION CORPN. & ANR.versusASHOK IRON WORKS PVT. LTD.
- Citation
- 2009 INSC 131
- Decided
- 9 February 2009
- Disposal
- Disposed off
- Bench
- MARKANDEY KATJU
Holding
A private limited company is a ‘person’ under the Act, electricity supply is a ‘service’, and untimely supply amounts to deficiency of service, making the consumer complaint maintainable.
Summary
Ashok Iron Works Pvt. Ltd., a private limited manufacturing company, filed a complaint under the Consumer Protection Act, 1986 against Karnataka Power Transmission Corporation (KPTC) for delay in electricity supply. The key issues were whether a private limited company qualifies as a ‘person’ under s.2(1)(d) of the Act, whether the supply of electricity constitutes a ‘service’ rather than a sale of goods, and whether the complaint was maintainable. The Supreme Court held that the definition of ‘person’ in s.2(1)(m) is inclusive, so a company is a ‘person’; the supply of electricity is a ‘service’ under s.2(1)(o) and any untimely supply amounts to deficiency under s.2(1)(g). Consequently, the complaint by Ashok Iron Works was maintainable. The Court dismissed Civil Appeal No. 1879/2003 (upholding the National and State Commission orders) and allowed Civil Appeal No. 7784/2002, restoring the respective complaints to the appropriate consumer forums.
Issues considered
- Is a private limited company a ‘person’ within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986?
- Does the supply of electricity by KPTC constitute a sale of goods or a service under the Act?
- Does the complaint fall within the ambit of ‘deficiency of service’ under Section 2(1)(g) and is it maintainable?
Legislation cited
- Consumer Protection Act, 1986s. 2(1)(d), s. 2(1)(g), s. 2(1)(m), s. 2(1)(o)
- Electricity (Supply) Act, 1948s. 49
- General Clauses Act, 1897s. 3(42)
Subjects
Consumer Protection Actdefinition of personprivate limited companyelectricity supplyservice vs goodsdeficiency of servicemaintainability of complaintKPTCAshok Iron Works
Judgment
[2009] 1 S.C.R.1109
- i KARNATAKA POWER TRANSMISSION CORPN. & ANR. A
v.
ASHOK IRON WORKS PVT. LTD.
(Civil Appeal No 1879 of 2003)
FEBRUARY 9, 2009
B
[MARKANDEY KAT JU AND R.M. LODHA, JJ.]
,.
CONSUMER PROTECTION ACT, 1986:
ss. 2(1) (d), 2(1)(m), 2(1)(o) and 2(1)(g) - 'consumer', c
'person', 'service' 'deficiency' - Complaint by a manufacturing
unit claiming damages from Kamataka Power Transmission
Corporation for delay in supply of electricity relating to the
period prior to amendment of s.2(1)(d)(ii) by Act 62 of 2002 -
Held: Definition of 'person' in s.2(1)(m) is inclusive and not D
..... ~
exhaustive - Company is a person within the meaning of
s.2(1)(d) r/w s.2(1)(m) - Supply of electricity to a consumer
by KPTC is not sale of electricity, but would be covered u/s
2(1)(o) being service and, if the supply is not provided within
the time stipulated, there may be a case of deficiency of
E
service as provided uls 2(1 )(g)-Therefore, the complaint is
maintainable - Interpretation of Statutes.
WORDS AND PHRASES :
• Expression 'includes' as occurring in s. 2(1 )(m) of F
Consumer Protection Act, 1986 - Connotation of.
The respondent in C.A. No. 1879 of 2003, a Private
Limited Company engaged in manufacture of iron
products, filed a complaint under the Consumer
Protection Act, 1986 before the District Consumer G
Disputes Redressal Forum claiming damages from the
-t
<" appellant-Karnataka Power Transmission Corporation for
• delay in supply of electricity. It was stated that the money
demanded was deposited on 1.2.1991 whereas the
1109 H
1110 SUPREME COURT REPORTS [2009] 1 S.C.R.
A supply of power commenced in the month of November,
1992. The appellant-Corporation raised a preliminary
objection as to maintainability of the complaint
contending that the complainant was engaged in
commercial activity and electricity being 'goods', sale
B thereof to a commercial consumer for commercial
purpose was outside the purview of the Act. The District
Forum rejected the complaint as not maintainable. The
State Commission and the National Commission having
held the complaint maintainable, the Corporation filed the
c appeal.
The appellant in Civil Appeal No.17784 of 2002, a sole
proprietor of a battery charging unit, filed a complaint
before the District Forum challenging the demand raised
by the Karnataka Power Transmission Corporation. The
D District Forum held in favour of the appellant. But the
State Commission and the National Commission having .-
held that the complainant was not a 'consumer' within the
meaning of s. 2 (1) (d) of the Act, he filed the appeal.
E The questions for consideration before the Court
were: (i) "Is a private limited company a 'person' as
contemplated under Section 2 (1) (d) of the Consumer
Protection Act, 1986? (ii) "Whether the supply of
electricity by KPTC to a consumer is sale and purchase
F of goods within the meaning of Section 2 (1) (d) (i) of the
Act, 1986?" and (iii) whether the supply of electricity by
KPTC would come within the ambit of s. 2 (1) (o) of the
1986 Act so as to be covered within the purview of sub-
clause (ii) of Clause (d) of s. 2 (1) of the Act?
G Dismissing Civil Appeal No. 1879 of 2003 and
allowing Civil Appeal No. 7784 of 2002, the Court
HELD:1. Section 2(1 )(m) of the Consumer Protection
Act, 1986. While defining 'person' cannot be held to be
H restrictive or confined to the four categories enumerated
KARNATAKA POWER TRANSMISSION CORPN. & ANR. 1111
v. ASHOK IRON WORKS PVT. LTD.
- "f
therein, namely, (i) a firm whether registered or not; (ii) a A
Hindu undivided family; (iii) a co-operative society; and
(iv) every other association of persons whether registered
under the Societies Registration Act, 1860 or not. It is not
said in terms that 'person' shall mean one or other of the
four things enumated, but that it s~all include them. The B
definition of 'person' in s.2(1 )(m) is inclusive and not
exhaustive. There is no doubt that company is a person .
within the meaning of s.2(1)(d) read with s.2(1)(m). [para
15 and 18] [1119-E; 1120-B-D]
The South Gujarat Roofing Tiles manufacturers
c
Association and Anr. v. The State of Gujarat and Anr. (1976)
4 SCC 601 and Reserve Bank of India v.Peer/ess General
Finance and Investment Co. Ltd. and Ors. (1987) 1 SCC 424,
referred to
_, . D
Lord Watson in Dilworth v. Commissioner of Stamps
(1899) AC 99, referred to
2.1. Supply of electricity to a consumer by KPTC is
not sale of electricity. The expression 'supply' is not
E
synonym for 'sale'. Supply does not mean sale. The
expression 'but does not include a person who avails of
such services for any commercial purpose' inserted in
s.2(1 )(d)(ii) by the Act 62 of 2002 is not applicable in the
• facts and circumstances of th~ instant case since the
F
- controvetsy relates to the period prior to the amendment.
[Para 24] [1124-A-D]
CST v. M.P. Electricity Board, Jabalpur 1969 (2) SCR
939; State of Andhra Pradesh v. National Thermal Power
Corporation (2002) 5 SCC 203; Indian Aluminium Co. v. State G
of Kera/a; (1996) 7 SCC 637; Southern Petrochemical
Industries Co. Ltd. Vs. Electricity Inspector & ETIO and Ors.
(2007) 5 SCC 447 and SOO, Electricity and Anr. Vs. B.S.
Lobana (2005) 6 SCC 280, referred to
H
1112 SUPREME COURT REPORTS [2009) 1 S.C.R.
A 2.2. As a matter of fact, the company has brought its 't -
case to be covered by s.2(1)(d)(ii) and not 2(1)(d)(i), as the
dispute raised by the company is with regard to non-
performance of services for consideration within the time
frame. For the purposes of maintainability of the
B complaint, therefore, what is important to be seen is
whether there is deficiency in service within the meaning
of s.2(1)(d)(ii). [Para 22] [1122-H; 1123-A-B]
3. Under s.2(1)(o) of the 1986 Act, 'service' means
service of any description which is made available to
c potential users and includes the provision of facilities in
connection with supply of electrical or other energy. As
indicated in the definition of 'service', the provision of
facilities in connection with supply of electrical energy is
a service. Supply of electricity by the Board or for that
D matter KPTC to a consumer would be covered u/s 2(1)(o)
being 'service' and, if the supply of electrical energy to a
~ -
consumer is not provided in time as is agreed upon, then
u/s (2)(1 )(g), there may be a case for deficiency in service.
[Para 22] (1123-8-E]
E
4.1. The complaint made by the appellant company
in C.A. No. 1879/2003 before the District Forum is
maintainable. The orders passed by National Consumer
Disputes Redressal Commission and the State Consumer
..
F Redressal Commission are affirmed and, accordingly, the
complaint stands remitted to the District Forum for its
disposal in accordance with law. [Para 25 and 28] [1124-
E; 1125-E]
-
4.2. The complaint by the complainant in CA No. 77 48/
G 2002 is maintainable. The Orders passed by State and the
National Commissions are set aside. Appeal No. 168/1994
is restored to the file of the State Commission for its
disposal in accordance with law. [Para 27and 28] [1125-
C-G]
H
KARNATAKA POWER TRANSMISSION CORPN. & ANR. 1113
v. ASHOK IRON WORKS PVT. LTD.
Case Law Reference: A
- -¥
(1976) 4 sec 601 referred to para 11
(1987) 1 sec 424 referred to para 11
(1899) AC 99 referred to para 12 B
1969 (2) SCR 939 referred to para 19
(2002) s sec 203 referred to para 19
(1996) 1 sec 637 referred to para 19
c
(2001) s sec 447 referred to Para 20
(2oos) 6 sec 280 referred to para 23
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
1879 of 2003. D
.... From the Judgment and Order dated 7.10.2002 of the
National Consumers Disputes Reddressal Commission, New
Delhi) in Revision Petition No.791 of 2000.
WITH E
C.A.No. 7784 of 2002.
Vijay Kumar and V.N. Raghupathy for the Appellants.
• Kiran Suri, K.H. Nobin Singh for the Respondents. F
The Judgment of the Court was delivered by
......
R.M. LODHA, J.1. These two appeals by special leave,
involving common questions, were heard together and are
being disposed of by this judgment. G
2. As the principal arguments have been advanced in Civil
Appeal No. 1879/2003, we take up the facts of that appeal
which are thus, briefly put. M/s Ashok Iron Works Private Limited
(for short, 'the company') is a Private Limited Company and
engaged in the activity of manufacture of iron products. The H
1114 SUPREME COURT REPORTS [2009] 1 S.C.R.
A company applied for the supply of electrical energy (2500 'r0IA)
to the Karnataka Electricity Board (now Karnataka Power -,. •
Transmission Corporation and hereinafter referred to as
'KPTC'). The application made by the Company was cleared
by the Single Window agency and supply of electric energy
B 1500 KVA was sanctioned. The company is said to have
deposited an amount of Rs. 8,40,000/- on 1st February, 1991
as per demand. KPTC did not commence supply of electricity
as agreed upon and that necessitated the company to approach
Karnataka High Court for a direction to KPTC to supply the
c sanctioned energy. On 16th April, 1992, the High Court directed
KPTC to supply electrical energy as per sanction forthwith and
subsequently, time for supply of electricity was extended by the
High Court upto 21st July, 1992. KPTC raised an additional
demand of Rs. 8,38,000/- from the company and further demand
D in the sum of Rs, 1,34,000/-. The company is said to have
deposited the said amount. However, the actual supply of the
power commenced in the month of November, 1992. The ~ <
company accordingly filed a complaint under the Consumer
Protection Act, 1986 (for short, 'the Act, 1986') before the
E Consumer Disputes Redressal Forum, Belgaum claiming
damages in the sum of Rs. 99,900/- for delay in supply of
electricity. The complaint was contested by KPTC, and, inter
alia, preliminary objection was raised that complaint was not
majntainable as the complainant was engaged in commercial
activity and electricity being goods; sale of goods to a
F commercial consumer for a commercial purpose was outside ,.
the scope of the Act, 1986.
3. As there were several complaints wherein identical -
objection pertaining to the maintainability of such complaints
G was involved, all these complaints were taken up and disposed
of together by the District Forum by a common order dated 10th
September, 1993. The District Forum was persuaded by the
objection raised by the KPTC and it held that the complaints
were not maintainable.
H 4. The company challenged the order of the District Forum
KARNATAKA POWER TRANSMISSION CORPN. & ANR. 1115
v. ASHOK IRON WORKS PVT. LTD. [R.M. LODHA, J.]
in appeal before Karnataka State Consumer Disputes A
Redressal Commission (for short, 'State Commission'). Few
other appeals from the common judgment dated 10th
September, 1993 also came to be filed before the State
Commission. The State Commission vide its order dated June
15, 1995 set aside the order of the District Forum and held that B
complaints were maintainable being covered by the definition
of "Consumer" under the provisions of the Act, 1986.
5. KPTC challenged the order of the State Commission
by filing a revision petition before the National Consumer
Disputes Redressal Commission (for short, '"National
c
Commission"). It appears that initially revision petition was
dismissed in default but later on, on the application of
restoration made by KPTC, the revision petition was restored
but it was dismissed in view of its decision dated 23rd
·-- t;
November, 2001, in the case of Mis We/melt Steel Cast Pvt. D
Ltd. v. Karnataka State Electricity Board. It is from this order
that appeal 1879/2003 by special leave arises.
6. Mr. S.K. Kulkarni, learned counsel for KPTC made the
following submissions before us: E
(i) The complaint by the company before the Consumer
Forum against KPTC was incompetent and not
~ maintainable because the complainant is not a
'person' under Section 2(1)(m) of the Act, 1986 and
as such the complainant is not the 'consumer' F
•
within the opening limb of the definition of that
expression in Section 2(1 )(d).
(ii) The complainant is not a 'consumer' within the
definition of Section 2(1)(d)(i) of the Act, 1986 since G
it purchased electrical energy from the KPTC for
commercial production.
(iii) The complainant's case does not fall within the
scope of Section 2(1 )(d)(ii) of the Act, 1986. The
H
1116 SUPREME COURT REPORTS [2009] 1 S.C.R.
-;.
A expression "service" in Section 2(1 )(o) cannot be
read in a wider sense as it is circumscribed by the
word "facilities", thereby limiting the service only to
the consumers of facilities in connection with supply
of electrical energy. In other words, the dispute
B relating to sale and supply of electricity does not
come within the ambit of "service" under Section
2(1)(o) of the Act, 1986. lffor the arguments' sake,
it is treated "service", since it is for commercial
purpose, it is excluded from the purview of sub-
c clause (1)(d)(ii).
7. At this stage, it would be appropriate to refer to some
of the provisions of the Act, 1986 as were existing at the
relevant time in the year 1992 which are relevant for the
consideration of the submissions of the learned counsel for
D KPTC. .-
8. Section 2(1 )(d) defines "consumer" as follows:-
"Consumer" means any person who, -
E (i) buys any goods for a consideration which has been
paid or promised or partly paid and partly
promised, or under any system of deferred
payment and includes any user of such goods other
than the person who buys such goods for
F consideration paid or promised or partly paid or
partly promised, or under any system of deferred
payment when such use is made with the approval
-
of such person, but does not include a person who
obtain such goods for resale or for any commercial
G purpose; or
(ii) hires any services for a consideration which has
been paid or promised or partly paid and partly
promised, or under any system of deferred
payment and includes any beneficiary of such
H
KARNATAKA POWER TRANSMISSION CORPN. & ANR. 1117
v. ASHOK IRON WORKS PVT. LTD. [R.M. LODHA, J.]
-f services other than the person who hires the A
services for consideration paid or promised, or
partly paid and partly promised, or under any
system of deferred payment, when such services
are availed of with the approval of the first
mentioned person." B
9. According to Section2(1)(m), "person" includes:-
-t
"(i) a firm whether registered or not;
(ii) a Hindu undivided family; c
(iii) a co-operative society;
(iv) every other association of persons whether
registered under the societies Registration Act,
~ . 1860 (21 of 1860) or not." D
10. Section 2(1 )(o) defines "service" thus:
"Service' means service of any description which is
made available to potential users and includes the
E
provision of facilities in connection with banking, financing,
insurance, transport, processing, supply of electrical or
other energy, board or lodging or both, entertainment,
amusement or the purveying a news or other information,
.ll but does not include the rendering of any service free of
charge or under a contract of personal service." F
re : contention -(i)
11. The question that falls for our determination is: is a
private limited company a 'person' as contemplated under G
Section 2(1 )(d). The contention of the learned counsel for the
KPTC is that persons specified and enumerated in Section
2(1 )(m) are the only categories of persons covered by that
clause and a company incorporated under the Companies Act
is not covered thereunder. The learned counsel would submit
H
1118 SUPREME COURT REPORTS [2009) 1 S.C.R. •
A that a company is excluded from the definition of 'person' since ~
the object of the Act, 1986 is to provide an affordable remedy
to individuals or four categories of collectivities or associations
of individuals which may constitute legal entities for suing or
being sued. According to learned counsel, the companies
B incorporated were never intended to be covered by Act, 1986
as they could always pursue the ordinary remedy provided in
law. The learned counsel also submitted that the word "includes"
must be read as "means". In this regard, the learned counsel t·
placed reliance upon two decisions of this Court namely; (1) ...
c The South Gujarat Roofing Tiles Manufacturers Association
and Anr. v. The State of Gujarat and Anr. [(1976) 4 SCC 601]
(2) Reserve Bank of India v. Peerless General Finance and
Investment Co. Ltd. and Ors. [(1987) 1 SCC 424)]
12. Lord Watson in Dilworth v. Commissioner of Stamps
D (1899) AC 99 made the following classic statement:
. .....
"The word "include" is very generally used in
interpretation clauses in order to enlarge the meaning of
words or phrases occurring in the body of the statute; and
E when it is so used these words or phrases must be
construed as comprehending, not only such things as they
signify according to their natural import, but also those
things which the interpretation clause declares that they
shall include. But the word "include" is susceptible of
F another cons!ruction, which may become imperative, if the •
context of the Act is sufficient to show that it was not merely
employed for the purpose of adding to the natural
significance of the words or expressions defined. It may
be equivalent to "mean and include", and in that case it may
afford an exhaustive explanation of the meaning which, for
G
the purposes of the Act, must invariably be attached to
these words or expressions."
13. Dilworth (supra) and few other decisions came up for
consideration in Peerless General Finance and Investment
H Co.Ltd. and this Court summarized the legal positir·1 that
KARNATAKA POWER TRANSMISSION CORPN. & ANR. 1119
v. ASHOK IRON WORKS PVT. LTD. [R.M. LODHA, J.]
- ~
inclusive definition by the Legislature is used; (one) to enlarge
the meaning of words or phrases so as to take in the ordinary,
A
popular and natural sense of the words and also the sense
which the statute wishes to attribute to it; (two) to include
meaning about which there might be some dispute; (three) to
bring under one nomenclature all transactions possessing B
certain similar features but going under different names.
14. It goes without saying that interpretation of a word or
expression must depend on the text and the context. The resort
of the word 'includes' by the Legislature often shows the
intention of the Legislature that it wanted to give extensive and
c
enlarged meaning to such expression. Sometimes, however,
the context may suggest that word 'includes' may have been
designed to mean "means". The setting, context and object of
an enactment may provide sufficient guidance for interpretation
D
, , of word 'includes' for the purposes of such enactment.
15. Section 2(1)(m) which enumerates four categories
namely, (i) a firm whether registered or not; (ii) a Hindu
undivided family; (iii) a co-operati~ society; and (iv) every other
association of persons whether r gistered under the Societies E
Registration Act, 1860 (21 of 1860) or not while defining
'person' cannot be held to be restrictive and confined to these
four categories as it is not said in terms that 'person' shall mean
one or other of the things which are enurperated, but that it shall
'include' them. F
16. The General Clauses Act, 1897 in Section 3(42)
defines 'person':
"Person shall include any company or association or body
of individuals whether incorporated or not." G
17. Section 3 of the Act, 1986 upon which reliance is
placed by learned counsel for KPTC provides that the
provisions of the Act are in addition to and not in derogation
of any other law for the time being in force. This provision
H
1120 SUPREME COURT REPORTS [2009] 1 S.C.R.
A instead of helping the contention of KPTC would rather suggest
that the access to the remedy provided to the Act of 1986 is
~ -
an addition to the provisions of any other law for the time being
in force. It does not in any way give any clue to restrict the
definition of the 'person'.
B
18. Section 2(1 )(m), is beyond all questions, an
interpretation clause, and must have been intended by the
Legislature to be taken into account in construing the
expression 'person' as it occurs in Section 2(1 )(d). While
defining 'person' in Section 2(1 )(m), the Legislature never
c intended to exclude a juristic person like company. As a matter
of fact, the four categories by way of enumeration mentioned
therein is indicative, categories (i), (ii) & (iv) being unincorporate
and category (iii) corporate, of its intention to include body
corporate as well as body un-incorporate. The definition of
D 'person' in Section 2(1 )(m) is inclusive and not exhaustive. It
• '
does not appear to us to admit of any doubt that company is a
person within the meaning of Section 2(1 )(d) read with Section
2(1)(m) and we hold accordingly.
E re: contention - (ii) and (iii)
19. In CST v. MP. Electricity Board, Jabalpur; case 1969
(2) SCR 939, this Court held that electricity is 'goods'. In the
case of State of Andhra Pradesh v. National Thermal Power
Corporation; (2002) 5 SCC 203, the Constitution Bench •
F approved the observations made in M.P. Electricity Board to
the extent that electrical energy can be transmitted, transferred,
delivered, possessed, etc., but did not agree with the
observation that electrical energy can be stored. The
Constitution Bench held that significant characteristic of
G electrical energy is that its generation or production coincides
almost instantaneously with its consumption. In the case of
Indian Aluminium Co. v. State of Kera/a; (1996) 7 SCC 637,
the characteristics of electrical energy were noticed by this
Court thus, " ..... continuity of supply and consumption starts
H from the moment the electrical energy passes through the
KARNATAKA POWER TRANSMISSION CORPN. & ANR. 1121
v. ASHOK IRON WORKS PVT. LTD. [R.M. LODHA, J.]
meters and sale simultaneously takes place as soon as meter A
reading is recorded. All the three steps or phases (i.e. sale,
supply and consumption) take place without any hiatus. It is
true that from the place of generating electricity, the electricity
is supplied to the sub-station installed at the units of the
consumers through electrical high-tension transformers and B
from there electricity is supplied to the meter.... "
20. Recently, this Court in the case of Southern
Petrochemical Industries Co. Ltd. v. Electricity Inspector &
ET/O and Others; (2007) 5 SCC 447, made following pertinent
observations:
c
"149. It may be that electricity has been considered to be
"goods" but the same has to be considered having regard
to the definition of "goods" contained in clause (12) of the
Article 366 of the Constitution of India. When this Court D
- ' held electricity to be "goods" for the purpose of application
of sales tax laws and other tax laws, in our opinion, the
same would have nothing to do with the construction of
Entry 53 of List 11 of the Seventh Schedule of the
Constitution of India." E
21. Section 49 of The Electricity (Supply) Act, 1948 makes
the following provision:
{49. Provision for the sale of electricity by the Board to
• F
persons other than licensees. - (1) Subject to the
provisions of this Act and of regulations, if any made in this
behalf, the Board may supply electricity to any person not
being a licensee upon such terms and conditions as the
Board thinks fit and may for the purposes of such supply
frame uniform tariffs. G
(2) In fixing the uniform tariffs, the Board shall have regard
to all or any of the following factors, namely:-
(a) the nature of the supply and the purposes for
which it is required; H
1122 SUPREME COURT REPORTS [2009] 1 S.C.R.
A (b) the co-ordinated development of the supply and
distribution of electricity within the State in the most
efficient and economical manner, with particular
reference to such development in areas not for the
time being served or adequately served by the
B licensee;
(c) the simplification and standardization of
methods and rates of charges for such supplies;
(d) the extension and cheapening of supplies of
c electricity to sparsely developed areas.
(3) Nothing in the foregoing provisions of this section shall
derogate from the power of the Board, if it considers it
necessary or expedient to fix different tariffs for the supply
of electricity to any person not being a licensee, having
D
regard to the geographical position of any area, the nature .-
of the supply and purpose for which supply is required and
any other relevant factors.
(4) In fixing the tariff and terms and conditions for the supply
E of electricity, the Board shall not show undue preference
to any person.]
22. Whether the supply of electricity by KPTC to a
consumer is sale and purchase of goods within the meaning
•
F of Section 2(1)(d)(i) of the Act, 1986? We do not think so.
Although title of Section or marginal note speaks of "the sale
of electricity by the Board to persons other than licensees" but
the marginal note or title of the Section cannot afford any
legitimate aid to the construction of Section. Section 49 speaks
G of supply of electricity to any person not being a licensee upon
said terms and conditions as a Board thinks fit and for the
purpose of such supply free uniform tariffs. This Court has
already held in Southern Petrochemical Industries (supra) that
supply does not mean sale. As a matter of fact, the company
has brought its case to be covered by Section 2(1 )(d)(ii) and
H
KARNATAKA POWER TRANSMISSION CORPN. & ANR. 1123
v. ASHOK IRON WORKS PVT. LTD. [R.M. LODHA, J.]
-'r not 2(1 )(d)(i) as the dispute raised by the company is with A
regard to non-performance of the services for consideration
within time frame. For the purposes of the maintainability of the
complaint, therefore, what is important to be seen is whether
there· is deficiency in service within the meaning of Section
2(1)(d)(ii). Under Section 2(1)(o) of the Act, 1986, 'service' B
means service of any description which is made available to
potential users and includes the provision of facilities in
connection with supply of electrical or other energy. "Deficiency"
under Section 2(1)(g) means any fault, imperfection,
shortcoming or inadequacy in the quality, nature and manner
c
of performance which is required to be maintained by or under
any law for the time being in force or has been undertaken to
be performed by a person in pursuance of a contract or
otherwise in relation to any service. As indicated in the
definition of 'service', the provision of facilities in connection
j with supply of electrical energy is a service. Supply of electricity D
by the Board or for that matter KPTC to a consumer would be
covered under Section 2(1 )(o) being 'service' and if the supply
of electrical energy to a consumer is not provided in time as is
agreed upon, then under Section (2)(1 )(g), there may be a case
for deficiency in service. E
23. Learned counsel for KPTC relied upon an order of this
Court in the case of SOO, Electricity and Anr. v. B.S. Lobana;
(2005) 6 sec 280 in support of his contention that in the matter
>.
such as present one, the Consumer Forum is not an F
appropriate forum. We are afraid no such absolute proposition
as canvassed by the learned counsel is discernible from the
said order. The said order is ~onfined to its own facts which is
clear from paragraph 3 that reads thus:
"The respondent has filed written submissions. We have G
perused the same. In the facts and circumstances of the
case, we are of the view that instead of moving the District
Forum, th~ respondent should have moved an application
under section 26(6) of the Electricity Act, 1910 (for short "
the Act") for referring the matter to the Electrical Inspector." H
1124 SUPREME COURT REPORTS [2009) 1 S.C.R.
A 24. Learned counsel urged that the definition 'service' is
of limited nature and is limited to the providing facilities in
connection with electricity. According to him, the facility is an
expression which facilitates the supply of electricity to an
installation and the definition of service does not cover supply
B of electricity. This contention of the learned counsel is founded
on erroneous assumption that supply of electricity is a sale of
electricity and the use of expression 'supply' is synonym for
'sale'. We have already noticed above, which we need not
repreat, that supply of electricity to a consumer by KPTC is not
c sale of electricity. The expression 'supply' is not synonym for
'sale'. We reiterate what has been stated by this Court in
Southern Petrochemical Industries Co. Ltd. (supra) that supply
does not mean sale. The expression 'but does not include a
person who avails of such services for any commercial purpose'
D inserted in Section 2(1 )(d)(ii) by the Act 62 of 2002 is not
applicable in the facts and circumstances of the present case ..
since the controversy relates to the period prior to amendment.
25. In what we have discussed above, the complaint made
by the company before the District Forum cannot be said to
E be not maintainable and we hold, as we must, that complaint
is maintainable.
26. In so far as Civil Appeal No. 7784/2002 is concerned,
the complainant (appellant herein) is a sole proprietor ofTechno
Batteries which is a battery charging unit. According to the
F complainant, for the power supplied by Karnataka Electricity
Board (now 'KPTC') charges payable are under "Power-Tariff,
L.T.-5" but in the Bill dated 6th March, 1990, a sum of Rs.
'
22,628.40 was demanded as "Audit Short Claim" on the ground
that the charges payable for the consumption of electricity by
G the complainant are under Tariff-Schedule L.T.-3 and not L.T. -
5. The complainant moved the District Forum at Bangalore
challenging the demand. The District Forum allowed the
complaint vide its order dated 22nd February, 1994. KPTC
preferred an appeal before the State Commission. The State
H Commission by its Order dated 19th June, 1997 allowed the
KARNATAKA POWER TRANSMISSION CORPN. & ANR. 1125
v. ASHOK IRON WORKS PVT. LTD. [R.M. LODHA, J.]
appeal on the ground that the complainant was not a consumer A
within the meaning of Section 2(1 )(d) of the Act, 1986 and
consequently, it set aside the order of the District Forum.
Aggrieved by the order of the State Commission, the
complainant preferred Revision before the National
Commission. The Revision Application came to be dismissed B
as the complainant was not present and also because the
National Commission was satisfied with the order passed by
the State Commission. This appeal arises from the Order dated
1st December, 2000, passed by the National Commission.
27. In view of the discussion already made by us above C
while dealing with contentions (ii) and (iii) in Civil Appeal No.
1879/2003, it has to be held that the complaint by H.V.
Balchandra Rao is covered under Section 2(1}(d)(i)(ii) of the
Act, 1986.
, ; 28. For the foregoing reasons: D
(1) Civil Appeal No. 1879/2003 is dismissed; the
order dated 7th October, 2002 passed by National
Consumer Disputes Redressal Commission and the
Order of Karnataka State Consumer Redressal E
Commission passed on 15th June, 1995 are affirmed and,
accordingly, the complaint stands remitted to District
Forum for its disposal in accordance with law.
(2) Civil Appeal No. 7784/2002 is allowed and the
Order dated 1st December, 2000 passed by National F
Consumer Disputes Redressal Commission and the
Order dated 19th June, 1997 passed by Karnataka State
Consumer Disputes Redressal Commission are set aside.
Appeal No. 168/1994 is restored to the file of Karnataka
State Consumer Disputes Redressal Commission for its G
disposal in accordance with law.
(3) The parties shall bear their own costs.
R.P. Civil Appeal No. 1879 of 2003 dismissed.
and Civil Appeal No.7784 of 2002 allowed. H
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